NSA: We’ve had willful violations, too

Ed MorrisseyPosted at 5:31 pm on August 24, 2013

After an internal NSA audit showing thousands of violations every year got exposed earlier this week, the agency and its defenders rushed to emphasize that these were inadvertent violations, accidents that comprised a microscopic percentage of the massive amounts of data the NSA reviews. That may be small comfort as it is, but the story changed a little bit late yesterday. The NSA now admits that “some” of its agents willfully violated the prohibitions on domestic surveillance, but that they were all disciplined … in some manner:

The National Security Agency said Friday that some of its analysts knowingly and deliberately exceeded its surveillance authority on occasion over the past decade and that those involved were disciplined.

“Very rare instances of willful violations of NSA’s authorities have been found,” the agency said in a statement. It said none of the abuses involved violations of the Foreign Intelligence Surveillance Act or the USA Patriot Act. NSA violations of both laws have been highlighted in the leaks of classified information by former NSA systems analyst Edward Snowden.

Two U.S. officials said one analyst was disciplined in years past for using NSA resources to track a former spouse. The officials spoke on condition of anonymity because they were not authorized to speak publicly.

“NSA takes very seriously allegations of misconduct, and cooperates fully with any investigations – responding as appropriate,” the agency statement said. “NSA has zero tolerance for willful violations of the agency’s authorities.”

The WSJ’s Washington Wire reports that the biggest category of violations in is LOVEINT — intelligence gathering by NSA agents that target their sweethearts, would-be or actual:

National Security Agency officers on several occasions have channeled their agency’s enormous eavesdropping power to spy on love interests, U.S. officials said.

The practice isn’t frequent — one official estimated a handful of cases in the last decade — but it’s common enough to garner its own spycraft label: LOVEINT.

Spy agencies often refer to their various types of intelligence collection with the suffix of “INT,” such as “SIGINT” for collecting signals intelligence, or communications; and “HUMINT” for human intelligence, or spying.

NSA officials also insist that these LOVEINT violations all took place while surveilling foreign communications, not the domestic signals surveillance programs currently at issue. Of course, that applies only to those caught conducting LOVEINT. How did they get caught? According to the NSA, they mostly just turned themselves in, sometimes prompted by routine polygraph testing. At least based on what officials are saying, there doesn’t appear to be any other controls to stop that kind of activity.

Does that make anyone feel better? The polygraph screening is useful for catching people conducting surveillance that’s not sanctioned by the agency, and while that’s not infallible, it’s a useful screening strategy. The problem, though, is that the NSA has the power to do this without effective outside checks and controls. Even the Senate intelligence chair didn’t know about this audit until it was made public, and until now we didn’t know about LOVEINT. What happens if the NSA and leadership above that level decide to use that power to go after domestic opponents — say, perhaps, Tea Party groups on the Right or MoveOn on the Left? If the surveillance is sanctioned, why would polygraphers ask about it? This is the problem with the “trust us” policy, and why the founders wisely built our political system on checks and balances from the beginning.

On the other hand, if you find yourself surveilled by the NSA, you can just convince yourself that an agent really, really likes you. Snoop With Love!